Citation Nr: 0923537
Decision Date: 06/23/09 Archive Date: 07/01/09
DOCKET NO. 06-19 067 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to an increased evaluation for service-connected
right shoulder disability, characterized as right shoulder
posttraumatic degenerative joint disease, status post
surgical repair, acromioclavicular joint separation with
Bosworth screw and status post screw removal with associated
rotator cuff tendinopathy, currently evaluated as 20 percent
disabling, to include an earlier effective date (EED).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The Veteran had active service from December 1966 to
September 1970.
This appeal to the Board of Veterans Appeals' (Board) was
from actions taken by the above Department of Veterans
Affairs (VA) Regional Office (RO).
During the course of the current appeal, in a rating
undertaken in August 2008, an increased rating was assigned
by the VARO, from 10 to 20 percent, for the herein concerned
right shoulder disability.
The Veteran had been scheduled for a videoconference hearing
before the Board on June 19, 2009; his earlier facsimile as
will be discussed below, which also cancelled that hearing,
and a cover memorandum from his representative dated May 18,
2009, were attached to the file as of the scheduled hearing
date.
FINDING OF FACT
Prior to the promulgation of a decision in the appeal, the
Veteran withdrew in writing his appeal on the issue of an
increased rating for his right shoulder disability.
CONCLUSION OF LAW
Because the Veteran has withdrawn his appeal relating to the
issue of entitlement to an increased evaluation for his right
shoulder disability, the Board does not have jurisdiction to
consider that claim. 38 U.S.C.A. § 7105 (West 2002 & Supp.
2008); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
that fails to allege specific error of fact or law in the
determination being appealed. A substantive appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202. Withdrawal may be made by
the appellant or by his authorized representative. 38 C.F.R.
§ 20.204.
The issue of entitlement to an increased evaluation for the
Veteran's right shoulder was fully developed by the RO and
certified to the Board on appeal.
In written documentation via facsimile from the Veteran,
dated and received by the Board on May 18, 2009, he indicated
that he was accepting the rating as assigned (and on which
interim action to increase had been effectuated during the
course of the appeal), and that he was satisfied, and thus
wished to close his appeal. A June 2009 Motion to Withdraw
the Appeal was forwarded to the Board by his representative,
in confirmation of the Veteran's wishes.
There remain no allegations of errors of fact or law for
appellate consideration as to those issues. Thus, the Board
does not have jurisdiction to review them, and they must
therefore be dismissed, without prejudice. 38 U.S.C.A.
§ 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b), (c).
ORDER
The appeal for entitlement to an increased evaluation for a
right shoulder disability is dismissed.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs